The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1887-04-28
Supreme Court Decision Reviewed.

Mr.. EDITOR: The business condition
of our country has been iu an unsettled
state for some time, and it strikes your
correspondent that the recent decision of
our Supreme Court on the question OF
the validity of mortgages executed by
married women is unfortunate, even if
good law, of which there is considerable
doubt The great majority of debtors
never fail to avail themselves of the
loop.holes in Law, and l apprehend that
there are numbers of men who have Dor.
rowed honest money in the name of
their wives, when pay day comes will
avail themselves, instead of their wives,
of the defence. I am not willing to
concede that the pure, noble and honest
women of the country would 60 volunta-
rily into Court and make the defence,
after having let their husbands use their
property to get the money; but the great
trouble is there are so many husbands
who hsd rather borrow money on the
faith of their wives property than steal
or cheat openly, and then set up the
defence for their wives. You see, Mr..
Editor, this will give them double liv.
ing, as such men, when they can not
make the second rise on the security of
their wives property, will require the
property to be reconveyed to them, on
which they will next borrow in their
own names, and then when pay day
comes, and resort is had to foreclosure,
they will have their wives to intervene,
under plea of fraud and duress, and thus
their scheme of pilfering the unsuspect.
ing will go on. The aood.gates of fraud
and perjury will thus be thrown open,
and moral bankruptcy be the order OF
the day.
While the decision of the Court is q
leading case, land, by the way, the def.
milton of leading case by one of the best
lawyers of the country suggests itself to
my mind-a leading case "is one made by
the Court itself, without law or prece.
dent,") and is the law which all good
citizens are bound to obey until reversed
or modified. Yet it will be long time
before the legal profession will regard it
good law, in the face of the Constitution
and the General Statutes, as construed
by former decisions Of the same Judges,
which decisions are irreconcilable with
the last deliverance of the Court.
The General Statutes, IA VOL, (1S70,)
page 1926, has this Section: "a married
woman shsil have power to bequeath,
devise or convey her separate property in
the same manner and to the same extent
as if she were unmarried, and dying
intestate, her property shall descend in
the same manner as the law provides for
the descent of the property of the hus.
band and all deeds, mortgages and legal
instruments of whatever kind, shall be
executed by her in the same manner,
and have the same legal force and effect
as if she were unmarried" This Ian
guage is identical, word for word, with
Section 2036, General Statutes, and has
never been changed by legislative enact
ment. I fail to see, Mr.. Editor, in this
language or in the Constitution. that
where she executes deed, or ahenates
her separate property, it must be for the
benefit Of that property, rather than for
her personal benefit. And if the people
in Convention, or by their Representa-.
tiyes, have not seen St to insert the
words, "for the benefit Of her separate
property" when was the Court authoriz
ed to exercise the functions of the legis.
lative body, and insert words by inplics.
ton, not warranted by the language used
by the law:makersP If she alienates
then, according to the decision, it must
be for the benefit Of her separate property |;
ifshe bequeaths, it must be for the bene-
fit Other separate property; if she dies
intestate, it must descend under the
Statute Of Distributions, by construction,
for the benefit of her separate property,
rather than for the benefit of her heirs.
What an absurdity; and yet the decision
logically leads to it. The Constitution
and Statutes have been construed by the
same Court, and by some Of the same
Judges, entirely different from the last
decision. Witsell vs.. Charleston, z s. c.,
8S, is cited as authority for the last
decision, but there it was expressly de-
cided "Lhat under the Constitution mar
!ried woman, having power to ALLEVIATE
her. separate estate, may pledge the
same, as q security for her husbands
debts" And a mortgage is a pledge. In
the case of Pelzer, Rodgers & Go. vs..
Campbell, Is S. c., 581, and Ciinkscales
vs. Hall, 902, it was urged that the pow.
ers of married woman must be restrict
ed to the matters enumerated in the
Constitution-Art. XIV, Sec. 8-but the
Court held: "There is nothing in the
Constitution Of 1868, which prevents the
Legislature from giving to married no.
men rights and powers in addition to
those conferred by that instrument, and
therefore the provision in the Act of 1870
(Gen. Stat, ch. 6, 8 g., authorizing
married woman to contract and be con.
tracted with, in the same manner as if
she were unmarried, is not unconstitu
tional." MCGOWAN, a. j., delivering
the opinion, which is concurred in by
Simpson, @. ], and McIver, A. J.
In yvitte vs.. Wolfe, 10 SC, page 256,
the Court. per MCGOWAN, A. J., say !:
"The Act of 1870, II Stat, 1926, gives the
power to a married woman to contract
and be contracted with as if she were
unmarried" and expressly declares that
"all deeds, mortgages and legal instru-
ments, of whatever kind, shall be exc
cuted by her married woman) in the
same manner, and have the same legal
force and effect, as if she were unmar.
ried;" and,- "withont reference to the
effect of the Constitution, under this
power ahe could charge the property spe.
cifcally, by mortgage, even according to
the principles which we're applied in this
State before the Constitution" Both
Simpson, G. j., and McIver, A. j., con.
cur,
In the case Of Witte Bros. ys. Clarke.
IT'S. c., 327, McIver, A. j., delivering
the opinion on the same subject, say :.
This shs had q perfect right to do, as
the Constitution, Art. XIV, 6 8, invests
her with the same power to dispose of
her separate property that single wo-,
man. has. She, therefore, could dispose
of this money az she pleased, and if she